Important note: this paper should not be regarded as a guide to our current policy and practices in relation to birth registrations, and it is not maintained as a living document. Our approaches have been informed by community-building and evidence-building, and are defined (as of March 2017) in the Darlington Statement.
Intersex people in several Australian are able to obtain an administrative correction of intersex birth registrations, including correction to alternative male, female, or (in some cases) blank designation.
Note: in some jurisdictions, such as New South Wales, the rules for people changing sex marker on birth certificates (whether intersex or not) can be onerous, particularly when legally married or when seeking a classification other than female or male. The rules for people changing sex marker on passports are more flexible, and have the added advantages of enabling travel and providing photo ID.
Recognising the diversity of intersex gender identities
There is a common assumption that intersex people have non-binary gender identities, and even a belief that a third sex classification recognises the existence of people with intersex variations.
It is important to note that not all people with intersex variations seek an intermediate birth certificate, and assumptions that conflate the intersex experience with non-binary gender identities take an essentialist approach to biology that promotes the misgendering of very many intersex people who identify as men or women. Ultimately, this approach is predicated on an assumption that identities and bodies need to match each other to be valid – and that’s an argument that leads to surgeries on intersex infants to align genitals with sex of rearing. It’s also transphobic: it leads to requirements for trans people to be sterilised or otherwise modified to obtain gender recognition.
Other common beliefs may arise from a widespread conflation of “trans and intersex” issues, including an assumption that intersex issues are about gender, or gender transition. This is not the case. Intersex people share a common experience of being born with stigmatised and atypical sex characteristics. Our understanding is that a minority of people born with intersex variations change sex assignment. Sometimes our gender identities are lifelong; sometimes they are hard won. Proper recognition of our identities is essential for all of us.
Indeterminate birth certificates
One State and one Territory are known to offer adults the choice of birth certificates showing no sex marker, or a non-binary option.
Alex MacFarlane is on record as having obtained the first Australian passport with an ‘X’ sex marker on the basis of Alex’s chosen indeterminate birth certificate. The West Australian newspaper reported in ‘X marks the spot for intersex Alex’ on 11 January 2003:
The X signifies unspecified sex or intersex and is the only other sex category allowed under International Civil Aviation Organisation guidelines for machine-readable passports.
A spokeswoman told The West Australian that, after reviewing the issue, the [Department of Foreign Affairs and Trade ] had decided to accommodate people whose birth certificates recorded their sex as indeterminate. Alex has since received the passport, with an X in the sex field.
In March 2014, the Australian Capital Territory in Australia begun to permit live infants to receive a non-binary sex marker on their birth certificate. While OII Australia supported Alex MacFarlane’s personal choice, the move in ACT was opposed, and is not supported by an international intersex community statement issued in December 2013. Infants are already subjected to surgical and hormonal treatment to “deconstruct” a stigmatised intersex anatomy, with known physically and mentally traumatic consequences. Persons assigned to a third category also have lesser rights, including no right to marriage. In such contexts, creation of a third classification at birth adds to incentives for medical intervention and clearly does not reduce tendencies that favour surgical treatment.
Administrative corrections to birth certificates acknowledge our medical histories, often including a history of involuntary or coerced medical intervention that changes our innate sex characteristics. Administrative corrections also reflect uncertainty about an original assignment. They acknowledge an incorrect initial assignment.
Tony Briffa in Victoria, provided the first case of an administrative correction of which we are aware.
We are aware that, in Western Australia, administrative corrections are not possible. Under Western Australian law, intersex people who reject their birth assignments have no choice but to comply with the rules contained in the Gender Reassignment Act 2000 (GRA). That entails, as it does for transsexual and transgender individuals, that sufficient parts of an intersex person’s anatomy should be removed or modified so that they might be seen to be appropriately bodied for the sex they wish to live as. OII Australia believes that this approach is inappropriate.
When a sex assignment is made on an intersex child there is no certain way to predict how that child might express their gender role as an adult. For those who discover their intersex as adults there’s also no certain way to say how their differences should inform their choice of gender roles.
Many intersex people will have experienced non-consensual cosmetic surgery as an infant to reinforce an assigned gender, and others will have atypical anatomy or features. These make it inappropriate to follow protocols designed for trans people.
Administrative correction in Victoria
The procedure for the adult documentation change is to “correct a birth certificate”.
Births, Deaths & Marriages Victoria summarises the procedure as follows:
To correct information on a birth certificate, you will need to return all Registry-issued birth certificates in your possession, with a signed cover letter stating what information needs to be corrected and what the correct information should be. You will also need to provide proof of your identity and documented evidence of the correct details. Please contact the Registry for advice and assistance in providing evidence for a correction. The Registry generally does not charge a fee to correct existing details on a birth certificate.
The provision of a certificate with no sex marker is managed via this correction procedure. The option is not available on the standard birth registration form. A sample Victorian birth registration statement as of 2012 is included in Appendix A of this Victoria Law Reform consultation paper. It contains only M and F options for sex of child.
Administrative correction in NSW
The NSW Registry of Births Deaths and Marriages (BDM) is now prepared to make amendments to a birth certificate because of a mistaken assignment at the time of birth. OII Australia has been made aware of these changes by Ms Lisa Karam, an Assistant Registrar with BDM.
BIRTHS, DEATHS AND MARRIAGES REGISTRATION ACT 1995 – SECT 45
Correction of Register
45 Correction of Register
(1) The Registrar may correct the Register:
(a) to reflect a finding made on inquiry under Division 2, or
(b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.
(2) The Registrar must, if required by a court, correct the Register.
(3) The Registrar corrects the Register by adding or cancelling an entry in the Register or by adding, altering or deleting particulars contained in an entry.
The following case study example was kindly provided by the NSW Registry:
Customer was born intersex in the late 1960s in New South Wales. Customer was registered with BDM as female but over the next forty years this was to prove to be incorrect. Customer supplied medical documentation outlining to the Registrar various diagnosis and procedures he had endured over a long period of time. Registrar amended the birth record of this person to show the correct gender. Registrar also added the person’s details to a child he had fathered regardless of the original birth registration as female.
We are advised that each case will be considered on a case-by-case basis. Some relevant considerations are medical diagnosis, lived experience, gender preference and presentation. There are no firm rules on the kinds of documentation or experiences needed to have a change made; rather, a compassionate consideration of all the details will inform decisions.